Fadia v. U-Haul, Inc. et al

Filing 17

DECISION AND ORDER granting 6 Motion to Dismiss. Action is dismissed. Signed by Hon. Charles J. Siragusa on 8/11/10. (KAP)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK T . CAMILLE FADIA, P la in t if f , -vU -H A U L , INC., OW N E R /M A N A G E R , R O C H E S T E R , NY, U-HAUL, INC., ELSMERE, KY, U-HAUL, INC., A R IZ O N A HEADQUARTERS, D e f e n d a n ts . D E C IS IO N AND ORDER 0 9 -C V -6 3 6 4 CJS

APPEARANCES F o r Plaintiff: T . Camille Fadia, pro se c /o Pepe P . O . Box 10624 G re e n s b o ro , North Carolina 27404 Martha Elizabeth Joerger, Esq. B r ya n Cave LLP 1 2 9 0 Avenue of the Americas, 33 rd Fl. N e w York, New York 10104 P a tric k B. Naylon, Esq. G o ld b e rg Segalla, LLP T w o State Street, Suite 805 R o c h e s te r, New York 14614

F o r Defendants:

IN T R O D U C T IO N T h is is an action in which Plaintiff, proceeding pro se, alleges that Defendants im p ro p e rly confiscated a rental truck from her that contained her personal belongings, in v io la t io n of the parties' rental agreement, and refused to return her property for several m o n th s . Further, she contends that Defendants lost or stole certain items of her property. N o w before the Court is Defendants' motion to dismiss the complaint (Docket No. [#6]). For t h e reasons that follow, the application is granted and this action is dismissed.

BACKGROUND T h e following information is distilled from the Complaint [#1] in this action, as s u p p le m e n te d by several submissions from Plaintiff. 1 On May 14, 2008, Plaintiff rented a t ru c k from a U-Haul representative in Elsmere, Kentucky. According to documents

s u b m itte d by Plaintiff, she agreed to return the truck to the same location on the following d a y, May 15, 2008. However, Plaintiff maintains that a U-Haul employee named Steve ("S t e v e ") orally granted her an extension of the return date. On May 21, 2008, Plaintiff was o p e ra tin g the truck on Interstate 90, when it broke down, apparently somewhere west of R o c h e s te r, New York.2 Plaintiff contacted U-Haul, and Steve granted her a further

e x te n s io n of time, until May 23, 2008, to return the truck. A mechanic repaired the truck, a n d Plaintiff resumed her journey. However, the truck broke down a second time, A tow truck operator towed the truck to

a p p r o x im a t e l y fifty miles west of Rochester. R o c h e s te r, where he left it in a "plaza."

Meanwhile, Plaintiff checked into a motel

s o m e w h e re nearby. Apparently, a mechanic repaired the truck and notified U-Haul, but not P la in t if f , of that fact. On May 22, 2008, Plaintiff called the U-Haul rental facility in Elsmere, Kentucky, and s p o k e with a man named Tony ("Tony"), who said that a mechanic had filed a report with U - H a u l, stating that the truck had been repaired and that Plaintiff was "on her way" to get th e truck. Tony stated, though, that he had been unable to speak directly to the mechanic, a n d he asked Plaintiff where the truck was located. Plaintiff responded that she did not

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Docket Nos. [## 10, 13, 14].

P la in tif f speculates that U-Haul actually caused the truck to stop functioning by rem o te control, using a n electronic "gadget" installed in the truck. (Docket No. [#13] at pp. 4-5).

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k n o w , because it was no longer in the location where the tow truck driver had left it. S u b s e q u e n tly, Plaintiff suspected that the truck had been stolen. However, on or about May 2 7 , 2008, a witness told Plaintiff that on May 22nd men in another U-Haul truck had come a n d taken the truck away. Eventually, on or about May 27, 2008, Plaintiff determined that th e truck was at a U-Haul location on East Ridge Road in Rochester. However, U-Haul re p re s e n ta tiv e s at that location told Plaintiff that she could not have her possessions from th e truck unless she paid what she owed on the truck rental, which they m a in ta in e d was $ 7 4 0 . Plaintiff indicated that the amount was incorrect, and she refused to pay. P la in tif f later learned the circumstances under which the truck had been taken to the U - H a u l facility in Rochester. Specifically, she maintains that a U-Haul employee in Arizona, n a m e d Tracy ("Tracy"), received a message from the mechanic who had repaired the truck, in d ic a tin g that he had repaired the truck and that Plaintiff was on her way to get it. Since P la in tif f denied knowing the whereabouts of the truck to Tony, Tracy apparently suspected th a t Plaintiff had lost or stolen the truck. Tracy called Plaintiff's home telephone and d ire c te d her to return the truck, but Plaintiff never received the message until some time in J u n e 2008, because she was traveling. In the meantime, Tracy contacted the U-Haul office in Rochester and directed it to locate and take possession of the truck, which it did.3 In any event, since Plaintiff refused to pay the amount demanded by the U-Haul re p r e s e n t a tiv e s in Rochester, the representatives refused to release her property. Plaintiff e v e n tu a lly filed a complaint with the Office of the Attorney General for the State of Kentucky. O n August 11, 2008, the Kentucky Attorney General's Office wrote to Plaintiff and informed

This explanation does not m a k e sense to the Court, since the truck had allegedly already been m o v e d from its location in the plaza when Plaintiff spoke to Tony on May 22nd.

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h e r that it had forwarded her complaint to U-Haul. On or about September 16, 2008, P la in tif f returned to Rochester and received most of her property. However, certain items o f property, such as a corporate book containing Plaintiff's corporate seal and blank stock c e r tif i c a t e s , were missing. At that time, the U-Haul representative presented Plaintiff with a new billing statement for $597, which was not itemized. Plaintiff refused to pay the bill, b e c a u s e she contends that she owed U-Haul only $386. Nevertheless, the representative a llo w e d Plaintiff to remove her property, after a police officer intervened in the dispute. On July 15, 2009, Plaintiff commenced this action. The Complaint describes the b a s is for federal subject-matter jurisdiction as follows: "Claim arises under Federal Law." (C o m p la in t p. 1). The Complaint purports to state claims under the federal Fair Debt C o lle c t io n Practices Act ("FDCPA"), 15 ("FDCPA") U.S.C. § § 1692 et seq., and the federal F a ir Credit Billing Act ("FCBA"), 15 U.S.C. § 1666. In that regard, Plaintiff states the federal b a s is for her claims as follows: "Fair Debt Collection Act says you cannot take all of a p e rs o n 's possessions as hostage. Fair Billing Credit Act says you have to show figures it e m iz e d ­ where got amount from." (Complaint [#1] p. 4). A s for damages, Plaintiff states: "I want monetary [sic] for whatever it cost me to get m y things back. For clothes I had to buy, because I was left with only the clothes on my b a c k [.] Return Corporate books and stocks + papers or pay me for. Pay for emotional d is t re s s and damages." Id. More specifically, the Complaint demands fifty thousand dollars in damages. Id. at p. 5 ("monetary relief ­ $50,000."). However, in attachments to the C o m p la in t, Plaintiff alleges that she sustained damages in excess of one hundred thousand d o lla r s . Significantly, in that regard, Plaintiff alleges that her corporate book and corporate p a p e rs , which were lost or stolen, are worth one hundred thousand dollars.

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S u b s e q u e n t ly, Defendants filed the subject motion to dismiss the Complaint in its e n t ir e t y, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). Defendants state th a t the Complaint is "fatally flawed since [Plaintiff's] claims are premised on statutes that h a ve no applicability to Defendants." (Def. Memo of Law at 1). Defendants state that they a r e not covered by the FDCPA since they are not debt collectors. (Id. at 7) ("Since the debt D e f e n d a n t s were attempting to collect was their own, and not the debt of `another,' D e f e n d a n ts are not proper defendants under the FDCPA."). Defendants also state that they a r e not covered by the FCBA, since the parties did not have an open-ended credit a r ra n g e m e n t . (Id. at 8) ("The FCBA is only applicable to open-end credit transactions, and c h ie f l y, to credit card accounts.") (citation omitted). In response to the motion, Plaintiff does not specifically address the applicability of th e FDCPA or FCBA. Instead, she insists more generally that she was wronged, and that D e f e n d a n ts violated "Federal and State laws." (Docket [#13] at 3). Plaintiff also indicates t h a t Defendants violated her federal constitutional rights. (Id. at 6, 8, 10-13). Further, P la in t if f indicates that Defendants committed a breach of contract (Id. at 12) and a tort (Id. a t 15). Essentially, Plaintiff maintains that she has some type of claim, and that the Court s h o u ld decide what it is. (Id. at 20) ("I leave it up to Your Honor and the Court to [decide] . . . whether Federal and State laws do or do not apply to [Defendants]."). O n May 20, 2010, the parties appeared before the undersigned for oral argument of th e motion. At that time, the Court advised Plaintiff that she did not have a claim under f e d e ra l law. The Court further advised Plaintiff that, although it may be that she had claims u n d e r state law, for breach of contract and conversion, it did not appear that her damages w o u ld amount to "$75,000, exclusive of interest and costs," as required by the diversity

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j u r i s d ic t io n statute, 28 U.S.C. § 1332.4 Accordingly, the Court granted Plaintiff additional tim e , until August 1, 2010, to submit a supplemental affidavit, explaining how she met the $ 7 5 ,0 0 0 . jurisdictional threshold. O n July 23, 2010, Plaintiff filed a supplemental affidavit, in which she contends that h e r damages against Defendants total $185,465.67. In that regard, Plaintiff states that she s u f f e re d $50,000. in damages, as a result of Defendants "willfully and maliciously taking my p r o p e r ty without due process of law." Plaintiff lists such damages, even though the Court e x p la in e d to her during oral argument that she could not maintain a claim for violation of her d u e process rights, since Defendants did not act under color of state law. Additionally, P la in tif f , who apparently produces and/or markets inspirational compact disks (CDs), states th a t she lost $100,000. in income, as a result of being unable to sell such CDs. As to this c la im , Plaintiff states that she wanted to produce a "Christmas play," but she was unable to do so because her script was contained in the property that was held by U-Haul until S e p te m b e r 16, 2008: P la in tif f didn't have the play script, which was in the U-Haul truck until S e p te m b e r 16, 2008, and then was transferred to storage until now, and w h ic h is still in there. Plaintiff had to get a copy from a priest who had it, and h a d used part of it at his church, with permission of Plaintiff. He was busy as h e is also a Carmelite Priest as well as a parish priest, and so he could not s e n d said play to Plaintiff until September, 2009. [Approximately one year a f t e r she recovered her property.] So, plaintiff could not put on [the] play yet. It was too late last year. W e 'll see about this year. So, Plaintiff lost income f o r not being able to put on [the] play, so that is in expenses here. [sic] Also, P la in tif f just finished producing a Radio Play/CD in 2008 of March, [sic] on m ira c le s of St. Michael and God in a major war, based on true stories, and w a s selling CDs on it, and all but two people liked it very much . . . . Plaintiff c o u ld not do marketing on said Radio Play/CD as she was distraught and tra u m a tiz e d and sick, and trying to work this mess out with U-Haul. So, P la in t if f estimated that she might have sold about 5,000 CDs since 5/2008 to
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It appears that there is diversity between the parties.

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5 /2 0 1 0 , had she been able to do marketing on this, and she could have had it aired on radio, which would have resulted in a lot more sales, but is trying to be fair to U-Haul, and is only asking for the money for not being able to sell th o s e 5,000 CDs. P la in tif f 's Supplemental Affidavit at pp. 2-3; see also, Plaintiff's cover letter dated July 20, 2 0 1 0 ("Note that I only said 5,000 CDs I could have sold, and not more, which might have h a p p e n e d had I had a chance to do marketing on this product."). Apart from the alleged d a m a g e s attributable to due process violations and lost sales of her CD, Plaintiff states that s h e incurred damages in the amount of $35,465.67, for things such as clothing, food, and h o te l costs. 5 D IS C U S S IO N In ruling upon a motion to dismiss made pursuant to FRCP 12(b)(6), the Court must c o n s tru e th e complaint liberally, accepting all factual allegations in the complaint as true, a n d drawing all reasonable inferences in the plaintiff's favor. Although the p lea d ing standard is a liberal one, bald assertions and conclusions of law will n o t suffice. To survive dismissal, the plaintiff must provide the grounds upon w h ic h her claim rests through factual allegations sufficient to raise a right to relie f above the speculative level. R e d d i n g to n v. Staten Island Univ. Hosp., 511 F.3d 126, 131 (2d Cir. 2007) (citations and inte rna l quotation marks omitted). In that regard, a complaint must contain "a short and plain s ta te m e n t of the grounds for the court's jurisdiction," as well as "a short and plain statement o f the claim, showing that the pleader is entitled to relief." FRCP 8(a). T h e standard to be applied on a motion to dismiss for lack of subject-matter ju ris d ic tio n , pursuant to Rule 12(b)(1) is also well settled:

For reasons that are unclear, Plaintiff includes claim e d dam a g e s in the am o u n t of $390., for the cost o f flying her pet cats to California.

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A case is properly dismissed for lack of subject matter jurisdiction under Rule 1 2 (b)(1 ) when the district court lacks the statutory or constitutional power to a d ju d ic a te it. In resolving a motion to dismiss for lack of subject matter juri s d ic tio n under Rule 12(b)(1), a district court, as it did here, may refer to e v id e nc e outside the pleadings. A plaintiff asserting subject matter jurisdiction h a s the burden of proving by a preponderance of the evidence that it exists. M a k a r o v a v. U.S., 201 F.3d 110, 113 (2d Cir.2000) (Citations omitted). W ith regard to the a m o u n t-in-c o n tro v e rsy requirement found in 28 U.S.C. § 1332, [a] party invoking the jurisdiction of the federal court has the burden of proving th a t it appears to a `reasonable probability' that the claim is in excess of the s ta tu to ry jurisdictional amount. In order for a case to fall under the federal d iv e rs ity statute, the plaintiff must prove diversity of the parties, and an amount in controversy that appears, to a "reasonable probability," to be in excess of the s ta tu to ry jurisdictional amount of $75,000. F e rn ic o la v. Toyota Motor Corp., 313 Fed.Appx. 408, 408-409, 2009 W L 535974 at *1 (2d Cir. M a r. 3, 2009) (citations omitted). T h is burden is hardly onerous, however, for we recognize a rebuttable p re s um p tio n that the face of the complaint is a good faith representation of the a c tu a l amount in controversy. To overcome the face-of-the-complaint p re s u m p tio n , the party opposing jurisdiction must show "to a legal certainty" th a t the amount recoverable does not meet the jurisdictional threshold. S c he re r v. Equitable Life Assurance Society of U.S., 347 F.3d 394, 397 (2d Cir. 2003) (cita tion s omitted).

Additionally, where, as here, the non-moving party is proceeding pro se, the court must interpret that party's supporting papers liberally, that is, interpret them "to raise the strongest arguments that they suggest." Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (citation omitted).
F a ir Debt Collection Practices Act P la in tif f alleges that Defendants violated the FDCPA. In relevant part, one of the F D C P A 's purposes is "to eliminate abusive debt collection practices by debt collectors."

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T h e term "debt collector" "means any person who uses any instrumentality of interstate c o m m e r c e or the mails in any business the principal purpose of which is the collection of a n y debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed o r due or asserted to be owed or due another." 15 U.S.C.A. § 1692a(6). The term "debt c o lle c to r" does not include "any officer or employee of a creditor while, in the name of the c re d ito r, collecting debts for such creditor." In this case, the named Defendants are either U - H a u l Companies or U-Haul employees, who were allegedly attempting to collect money o w e d to U-Haul. Consequently, none of the Defendants meets the statutory definition of a d e b t collector, and the FDCPA claim must be dismissed. Fair Credit Billing Act P la in tif f alleges that Defendants violated the FCBA. In that regard, the FCBA

" p r o t e c t s consumers against inaccurate and unfair credit billing and credit card practices." R h o d e s v. Whole Foods Market, Inc., No. 06-C-1288, 2007 W L 3256236 at *2 (W .D .T e x . N o v . 5, 2007). However, courts have consistently held that the FCBA applies only to opene n d e d credit plans. See, Id.; see also, Roybal v. Equifax, 405 F.Supp.2d 1177, 1180 ( E . D . C a l . 2005) ("By its very terms, the FCBA's billing error section applies solely to c re d ito rs of open end credit plans."). Since the parties' transaction did not involve an open e n d e d credit plan, Plaintiff cannot state a claim under the FCBA. Constitutional Claims T h e complaint includes vague allegations that Defendants violated Plaintiff's c o n s titu tio n a l rights. However, Plaintiff lacks a basis to pursue constitutional claims against D e f e n d a n t s , since they are private entities who were not acting under color of state law. In t h a t regard, 42 U.S.C. § 1983 requires "(a) that the defendant is a `person' acting `under the

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color of state law,' and (b) that the defendant caused the plaintiff to be deprived of a federal right." Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). " [T ] h e under-color-of-state-law element of § 1983 excludes from its reach merely private c o n d u c t , no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v.

S u lliv a n , 526 U.S. 40, 50, 119 S.Ct. 977, 985 (1999) (citation and internal quotation marks o m itte d ). Consequently, Plaintiff's constitutional claims are dismissed. F e d e ra l Subject Matter Jurisdiction P la in tif f indicates that subject-matter jurisdiction in this case is based on federal q u e s tio n jurisdiction. However, as discussed above, the Complaint fails to state any federal q u e s tio n claim. Although Defendants have not raised the issue of diversity jurisdiction, the C o u rt is required to determine whether it has subject-matter jurisdiction over this case.6 C o n s t ru in g the Complaint liberally, it does appear that Plaintiff has included enough facts to allege state-law claims for breach of contract and conversion. H o w e v e r, from the facts stated above, the Court finds that Plaintiff has not shown, to a "reasonable probability," that damages for such claims would exceed the statutory juris d ic tion a l amount of $75,000. Instead, the Court finds, "to a legal certainty," that Plaintiff's s ta te -la w claims would not satisfy the amount-in-controversy requirement. In that regard, the C o u rt has already indicated that Plaintiff cannot recover damages for alleged due process v io la tio n s. Additionally, Plaintiff's claim that she suffered $100,000. in damages related to her in a bility to market her CD is entirely speculative, and such damages almost certainly were not

See, Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) ("[T]he S u p r e m e Court [has] noted the existence of an inflexible rule that without exception requires federal courts, o n their own m o tio n , to determ in e if jurisdiction is lacking. Issues relating to subject m a tte r jurisdiction m a y b e raised at any tim e , even on appeal, and even by the court sua sponte.") (citations and internal quotation m a r k s om itte d ) .

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fo res e e a b le in any event. See, Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York, 1 0 N.Y.3d 187, 193, 856 N.Y.S.2d 505, 508 (2008) ("[T]he party breaching the contract is lia b le for those risks foreseen or which should have been foreseen at the time the contract w a s made. It is not necessary for the breaching party to have foreseen the breach itself or th e particular way the loss occurred, rather, it is only necessary that loss from a breach is f o re s e e a b le and probable. . . . Of course, proof of consequential damages cannot be s p e c u la t iv e or conjectural.") (citation omitted); Fantis Foods, Inc. v. Standard Importing Co., In c ., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 786 (1980) ("The usual measure of damages f o r conversion is the value of the property at the time and place of conversion, plus interest. P ro f its lost are generally disallowed, though they may be recoverable if they may reasonably b e expected to follow from the conversion.") (citations omitted). C O N C L U S IO N D e f e n d a n ts ' motion to dismiss is granted. Plaintiff's claims under the FDCPA and F C B A , as well as her constitutional claims, are dismissed with prejudice. Plaintiff's

r e m a in in g state law claims are dismissed without prejudice to her re-filing them in state c o u r t, pursuant to FRCP 12(b)(1) and 28 U.S.C. § 1367(c)(3). Plaintiff is advised that the s ta tu te s of limitations governing her state-law claims will be tolled for a period of thirty days, p u r s u a n t to 28 U.S.C. § 1367(d). See, Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1 9 9 8 ) ("Section 1367(d) ensures that the plaintiff whose supplemental state claim is d is m is s e d has at least thirty days after dismissal to refile in state court."). If Plaintiff wishes to re-file her action in state court, she must do so within the applicable statutes of limitations g o ve rn in g her state-law claims.

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The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
S O ORDERED. D a te d : A u g u s t 11, 2010 R o c h e s t e r , New York /s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge

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